dissenting. I agree with the majority that the trial court’s ruling admitting, for the purpose of establishing probable cause against the defendant, the statement of his accomplice, Tyrone Wilson, was a clear violation of the hearsay rule and thus erroneous. I disagree, however, that this error, even though it leaves the finding of probable cause without sufficient support in the evidence, requires a remand for a new trial, which setting aside the judgment entails.
This is the first case in which the decision of this court in State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986), that a finding of probable cause is reviewable on appeal after a defendant has been proved guilty beyond a reasonable doubt of committing the crime involved, has resulted in setting aside the conviction *143and remanding the case for “further proceedings,” which necessarily include a new trial. Although in the interim we have reviewed several findings of probable cause, until now we have not been compelled by that precedent to engage in the illogic of ordering a new trial for a defendant when we have found the trial at which he was convicted to have been without error. State v. McPhail, 213 Conn. 161, 567 A.2d 812 (1989); State v. Shannon, 212 Conn. 387, 563 A.2d 646, cert. denied, U.S. , 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Vinal, 205 Conn. 507, 534 A.2d 613 (1987); State v. Rollinson, 203 Conn. 641, 526 A.2d 1283 (1987). In this case, however, by adhering to the Mitchell precedent, the majority finds it necessary to order further proceedings to determine probable cause and a new trial, “even though the defendant has already received a fair trial,” as the opinion acknowledges. I agree with the majority that no other result than that reached by the opinion is possible in view of the prejudicial error committed at the probable cause hearing, unless we depart from Mitchell and hold that an erroneous finding of probable cause is a harmless error after a defendant has been found guilty beyond a reasonable doubt following a fair trial.
I concurred in the result reached in Mitchell, affirmance of the conviction, but dissented from the view of the majority as to reviewability of probable cause hearings upon the ground that errors in the determination of probable cause should be regarded as harmless, once a defendant has been convicted after a fair trial not impacted by such error. “A finding by a jury that a person is guilty beyond a reasonable doubt a fortiori signifies that there is probable cause to prosecute him. Even if the evidence offered at the probable cause hearing [is] inadequate to support the finding of prob*144able cause made by the trial court, it would still make no sense to vacate the jury’s finding of guilt beyond a reasonable doubt after a fair trial in order to require the state to make an adequate showing of probable cause at this stage of the proceeding.” State v. Mitchell, supra, 339 (Shea, J., concurring). To set aside this defendant’s felony murder conviction on the ground of a deficiency in the evidence at the probable cause hearing that was adequately cured by the evidence presented at trial is an absolutely futile exercise. The transcript of the trial unquestionably demonstrates the existence of probable cause to prosecute the defendant for felony murder. A remand for the purpose of another determination thereof, and a concomitant new trial, after no error has been found in his first trial, is a flagrant waste of judicial resources and imposes a wholly unnecessary hardship on the family of the victim in being required to undergo the trauma of a second trial.
As I observed in Mitchell, the principal concern of the majority in that case was that, without appellate review, General Statutes § 54-46a, which implements the seventeenth amendment to our state constitution, “would become a hollow shell.” Id., 343. This consideration, of course, is not insignificant, but the absence of appellate review of probable cause hearings would create no diminution in the rights of defendants as they existed when a finding of probable cause by a grand jury was required. “[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence . . . . ” United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). Although the adequacy of the evidence presented to a grand jury was never subjected to judicial review at the appellate or trial court level, we never regarded that venerable institution as a “hollow shell.”
*145If appellate review of probable cause hearings is to become standard criminal practice, it ought to be accomplished before a trial and conviction that make such a determination academic. To achieve pretrial review of a finding of probable cause, the legislature might well have provided for it, as it is their prerogative to define our jurisdiction. Conn. Const., art. V, § 1. The legislature did enact a provision for treating transfers of juveniles to the Superior Court under General Statutes §§ 46b-126 and 46b-127 as reviewable final judgments, after our decision had been published in In re Juvenile (85-AB), 195 Conn. 303, 488 A.2d 778 (1985), in which we had held that transfer orders were not appealable, because they were not final judgments.
This court, relying in part on Mitchell, has refused to apply to an appeal from a probable cause finding the principle of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), that “[a]n otherwise interlocutory order is appealable . . . where the order or action so concludes the rights of the parties that further proceedings cannot affect them” or to treat the probable cause hearing as “a separate and distinct proceeding from which an appeal would lie.” Id.; State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234 (1987). There is reason to be concerned, undoubtedly, with the probable impact on the increase in the volume of appeals that is likely to result, as well as the opportunity to delay the trial of cases on their merits, that would be afforded by such an expansion of the right to appeal by either the legislature or this court. Nevertheless, such a solution would be preferable to continued adherence to Mitchell, which, in this case necessitates a new trial for a defendant found guilty of felony murder beyond a reasonable doubt following a trial that is conceded to have been fair.
Accordingly, I dissent.